Europe’s comprehensive crypto legislation is being adopted. Here’s what you need to know.
The European Union’s Markets in Crypto Assets Regulation (MiCA), a legislation that aims to “harmonize the European framework for the issuance and trading of various types of crypto tokens as part of Europe’s Digital Finance Strategy,” which has been in the works for years, is finally ready. It has caused plenty of discussions, some controversy and has been feared — but also welcomed — by the crypto industry. Let us look into the process that led us here, what is still to come, and why this piece of legislation might be one of the most significant and comprehensive that we have seen in crypto yet.
MiCA, which will be applicable across all the member states in the European Union as well as with all businesses operating in the EU, has been in the works since early 2018. It first came into discussion following the bull market of 2017, a heady time where Bitcoin was making its new highs, a thousand tokens started flourishing amid Initial Coin Offerings (ICOs) out of which more than half failed less than 4 months after the offering.
The European Commission published its Fintech Action Plan in March 2018 and gave the mandate to the European Banking Authority (EBA) and European Securities and Markets Authority (ESMA) to review if the existing EU financial services regulatory framework applied to crypto assets. After deciding that most crypto assets are outside of the scope of current financial regulations, regulators began working on a new framework under the Digital Finance Package which eventually became MiCA. Since its initial inception, the crypto market went through a bear market, reaching its bottom in the early days of the pandemic followed by another bull market before taking a downward trend again in late 2021. New regulatory fears were ignited in the first two quarters of 2022 followed by events such as the Terra Luna stablecoin collapse and Three Arrows Capital and Celsisus bankruptcies.
In such a fast-paced environment, it is not difficult to understand that MiCA’s scope had to evolve from its original conception. NFTs barely existed when the legislation was first being conceived, DeFi summer was nowhere in sight and Meta was still called Facebook and working on its much scorned Libra project (remember that one?). Creating a legal framework that would provide legal certainty for both investors and issuers in that sort of fast pace environment was not easy, and the regulators have been back to the drawing board a few times. What we have in front of us now will be the largest piece of legislation around crypto thus far.
One of the major rules that will affect the industry is the requirements set for Crypto Asset Service Providers (CASPs) and investment firms and anyone providing custodial services. They will be liable for any loss of customer funds unless they are able to prove it was a result of events beyond their control. A number of measures deal with preventing insider trading and market manipulation.
In the process of formulating MiCA, a number of heated discussions were held on proof-of-work, so called ‘mining’, and potential environmental effects of this practice. Even with significant pressure coming from certain groups, the legislators rightfully steered away from any potential bans on proof-of-work. However, actors in the crypto market will be required to declare information on their climate footprint.
When it comes to decentralized financial protocols, they are not in the scope of MiCA and the European Commission will be publishing a separate report on them in 2023.
A large concern and a great deal of debate during the process of writing MiCA was focused on stablecoins. Following concerns expressed by the Council, additional restrictions on the issuance and use of stablecoins have been added to the legislation. Notably, MiCA has expressed the view that stablecoins could pose a threat to monetary sovereignty and opined that “central banks should be able to request the competent authority to withdraw the authorisation to issue asset-referenced tokens in the case of serious threats”.
Asset referenced tokens (ARTs) as noted in the legislation should be redeemable at purchased price at all times, which more or less makes any non-fiat denominated stablecoins not viable to launch, making it almost impossible for innovation in that field to take place and stripping away European consumers from participating in such potential investments. Together with issuance caps and limits on large scale payments for non-euro denominated stablecoins, this creates a confusing and not consumer-friendly environment when it comes to these tokens.
Even with all the updates and desire to keep up with the developments in the crypto industry, MiCA does not cover some very important parts of the crypto economy today. NFTs are mostly outside of the scope of this legislation. However, EU parliament members argued that many NFTs are actually used as financial instruments and could be subject to different standards. Fractionalized NFTs on the other hand, as well as “non-fungible tokens in a large series
or collection should be considered as an indicator of their fungibility” and will be treated not as unique crypto assets similar to digital art or collectibles.
The assets or rights represented by the NFT should also be unique and non-fungible for the asset to be considered as such. The fact that national enforcers could take inconsistent views on whether an asset can be considered non-fungible or not, if it requires a whitepaper or how exactly will it be regulated is something that should be of concern as it could potentially create many inconsistencies and concerns both for issuers and consumers. The EU is expected to publish another report on NFTs bringing more clarity to this area.
After the linguists are done with the final version of the text, the expectations are that MiCA will appear in the official journal sometime around April 2023, which would mean that stablecoin rules will start applying in April 2024 and CASP rules will be applied starting from October 2024. Considering the European Union is the third largest world economy, the effects of this legislation will have a broad impact on the industry, on retail consumers and investors, and definitely have some swway on other regulators around the world.
Having the European Union on the forefront of regulation of tech innovation is something that we have not seen much in the past. With MiCA being adopted, it will be up to the industry and consumers to make sure that the measures introduce certainty and allow for more innovation to flourish. Also, if those priorities stick, that these measures are copied and applied elsewhere. Either way, a long and exciting journey is ahead for everyone — regulators, investors and the broader crypto community.